United States v. Morales-Vega

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 20, 2003
• Docket: 02-20406
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20406 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GILBERT MORALES-VEGA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-742-ALL -------------------- February 20, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Gilbert Morales-Vega (“Morales”) appeals the sentencing

following his guilty-plea conviction for illegal reentry into the

United States following deportation. Morales argues that the

district court erred in assessing an eight-level sentence

enhancement because his state drug possession conviction was not

an aggravated felony because the maximum punishment was

probation. Morales also contends that under the November 1,

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-20406 -2-

2001, Sentencing Guidelines § 2L1.2(b)(1)(C), drug possession is

not an aggravated felony. Morales’ arguments are foreclosed by

the decision in United States v. Caicedo-Cuero, 312 F.3d 697

(5th Cir. 2002).

Morales also contends that his conviction for simple

possession of a controlled substance was not a “drug trafficking

crime” and, therefore, not an aggravated felony for the purposes

of 8 U.S.C. §§ 1101(a)(43)(B) & 1326(b)(2). Morales acknowledges

that his argument is foreclosed by United States v. Rivera,

265 F.3d 310, 312-13 (5th Cir. 2001), cert. denied, 534 U.S. 1146

(2002), and United States v. Hinojoas-Lopez, 130 F.3d 691, 693-94

(5th Cir. 1997), but he nevertheless seeks to preserve the issue

for possible further review.

Accordingly, Morales’ sentence is AFFIRMED.